Dombach v. Olkon Corp.

• Decision Date: 06 June 1972
• Citation: 302 A.2d 270,163 Conn. 216
• Court: Connecticut Supreme Court
• Parties: Heinz DOMBACH v. OLKON CORPORATION et al.

Page 270

302 A.2d 270

163 Conn. 216

Heinz DOMBACH v. OLKON CORPORATION et al.

Supreme Court of Connecticut.

June 6, 1972.

David J. Sullivan, Jr., Bridgeport, for appellant (plaintiff).

Adrian W. Maher, Bridgeport, with whom were Kevin J. Maher, Bridgeport, and, on the brief, Brian P. Maher, Bridgeport, for appellees (defendants).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZGERALD, JJ.

RYAN, Associate Justice.

The Superior Court dismissed the plaintiff's appeal from a finding and award of the workmen's compensation commissioner in favor of the defendants and the plaintiff has appealed to this court. The basic question presented is whether the plaintiff's injury arose out of and in the course of his employment.

The commissioner's finding discloses that Heinz Dombach was born in Switzerland on April 27, 1947, and emigrated to Toronto, Canada, on April 3, 1968. He brought with him a trunk, a suitcase and a bag. He entered the employ of the defendant on May 26, 1968, as a service engineer. His work involved the installation and servicing of machine tools purchased from the defendant Olkon Corporation by various manufacturing plants located in the eastern half of the United States. In making service calls at some distance from Stamford, he would travel by plane, but if the call was to be made at a plant within a reasonable driving distance, he would drive his own car. The defendant reimbursed Dombach for his travel expenses.

Late in the afternoon of Friday, August 23, 1968, after making a service call in Union, New Jersey, the plaintiff telephoned his employer, inquiring as to his next assignment. William Buol, the president of the defendant corporation, informed him that he was to be at the L.A.B. Company in Skaneateles, New York, at 8 a.m. on Monday, August 26, 1968, and that he should arrive at Skaneateles on Sunday evening, August 25, 1968, in order to keep this appointment the following day. The plaintiff then asked Buol if he could drive his car, in which were the tools needed for making the service calls for his employer, to Toronto, Canada, to pick up his trunk containing his personal winter clothes which he brought with him from Switzerland to Canada, to spend the weekend with friends in Toronto, and then on Sunday, August 25, 1968, to drive from Toronto to Skaneateles, New York. Mr. Buol replied in the affirmative. The plaintiff returned to his home in Stamford on Friday evening and left about 10 p.m. that same evening intending to drive directly to Toronto. He crossed the Tappan Zee Bridge and proceeded along the New York Thruway, the same route he would have driven if he were on his way to Skaneateles. About 10:40 p.m., while driving on the New York Thruway in the town of Sloatsburg, the plaintiff fell asleep. His car veered off the traveled portion of the highway and struck a guardrail. He was thrown from his car, and was found by the police 100 feet away from the point of impact. He sustained numerous lacerations and his spine was fractured. He was removed by ambulance to The Good Samaritan Hospital in Suffern, New York, where he was confined for a period of four weeks. Thereafter he was transferred to St. Joseph's Hospital where he remained as a patient as of the time of the rendition of the commissioner's award, having lost the use of both of his legs. The commissioner further found that on Friday, August 23, 1968, at 5 p.m. the plaintiff had completed his week's work for the defendant employer. His next service call was to be made on Monday, August 26, 1968, at 8 a.m. in Skaneateles, New York. He was, however, to arrive in Skaneateles, New York, Sunday evening, August 25, 1968, and remain there overnight. The commissioner concluded that travel on the highway was an important element of the plaintiff's employment; that the trip which the plaintiff was making on Friday evening, August 23, 1968, from Stamford to Toronto, Candada, was for the plaintiff's own personal business, for he was not intending to go to Skaneateles that Friday night; and that the plaintiff did not sustain any accidental injury which arose out of and in the course of his employment with the defendant employer.

The plaintiff's assignments of error are directed principally to the action of the trial court in sustaining the following conclusions of the commissioner: (1) The trip which the plaintiff was making on Friday evening, August 23, 1968, from Stamford to Toronto, Canada, was for the plaintiff's own personal business, for he was not intending to go to Skaneateles that Friday night. (2) The claimant did not sustain any accidental injury which arose out of and in the course of his employment with the employer. The plaintiff makes the further claim that the finding of the commissioner should have been corrected by adding thereto the following conclusions: (1) The work of the plaintiff created the necessity for travel on August 23, 1968; (2) service to the plaintiff's employer was at least a concurrent cause of the journey in question; (3) the employer was aware that the journey in question began after 5 p.m. on August 23, 1968, and was by expressed agreement assuming any hazards arising from the journey; (4) the employer was aware that the plaintiff left Stamford on Friday, August 23, 1968, because he had been ordered to be in Skaneateles, New York, on Sunday, August 25, 1968, and the trip to Toronto, Canada, was incidental to the trip to Skaneateles undertaken pursuant to orders received from his employer; (5) the accident and subsequent injuries incurred by the plaintiff did in fact arise out of and in the course of the plaintiff's employment with the employer; (6) the injuries sustained incurred within the period of employment, at a place where the plaintiff might reasonably be; (7) the claimant was reasonably fulfilling the duties of his employment; (8) the injuries sustained were a result of a risk involved in that employment and under conditions required by the employment; (9) the injuries arose out of and in the course of the plaintiff's employment. The addition of these conclusions would specifically eliminate the commissioner's conclusions, that the plaintiff's trip was for his own personal business and that the injuries sustained did not arise out of and in the course of his employment, and substitute the conclusions that should have been reached had the law been properly applied to the facts.

To be entitled to workmen's compensation, the plaintiff has the burden of proving that his injuries were sustained in the course of his employment and that they arose out of that employment. Hills v. Servicemaster of Connecticut River Valley, Inc., 155 Conn. 214, 216, 230 A.2d 604; Metall v. Aluminum Co. of America, 154 Conn. 48, 51, 221 A.2d 260; Woodley v. Rossi, 152 Conn. 1, 4, 202 A.2d 136; Soucier v. Genovese, 151 Conn. 430, 432, 198 A.2d 698; Gordon v. United Aircraft Corporation, 150 Conn. 328, 329, 189 A.2d 384.

The act defines an injury 'arising out of and in the course of his employment' as one 'happening to an employee . . . while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer's premises, or while so engaged elsewhere upon the employer's business or affairs by the direction, express or implied, of the employer.' General Statutes § 31-275; Metall v. Aluminum Co. of America, supra, 52 of 154 Conn., 221 A.2d 260. Our cases have held that an injury arises in the course of the employment when it takes place (a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it. Woodley v. Rossi, supra; Farnham v. Labutis, 147 Conn. 267, 269, 160 A.2d 120; Labbe v. American Brass Co., 132 Conn. 606, 609, 46 A.2d 339; Ruckgaber v. Clark, 131 Conn. 341, 343, 39 A.2d 881; Herbst v. Hat Corporation of America, 130 Conn. 1, 5, 31 A.2d 329; Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303, 308, 97 A. 320. An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or to the conditions under which it is required to be performed. Farnham v. Labutis, supra; Labbe v. American Brass Co., supra; Ruckgaber v. Clark, supra; Larke v. John Hancock Mutual Life Ins. Co., supra.

An injury sustained on a public highway while going to or from work is ordinarily not compensable. A principal reason for this rule is that employment ordinarily does not commence until the claimant has reached the employer's premises, and consequently an injury sustained prior to that time would ordinarily not occur in the course of the employment so as to be compensable. Furthermore, in cases falling within the ordinary rule, the employee's means of transportation, as well as his route are entirely within his discretion, unfettered by any control or power of control on the part of the employer. Lake v. Bridgeport, 102 Conn. 337, 342-343, 128 A. 782. There are a number of exceptions to the ordinary rule, four of which are pointed out in the Lake case, supra, 343, 128 A. 782: (1) If the work requires the employee to travel on the highways; (2) where the employer contracts to furnish or does furnish transportation to and from work; (3) where, by the terms of his employment, the employee is subject to emergency calls and (4) where the employee is injured while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer. See McKiernan v. New Haven, 151 Conn. 496, 498, 199 A.2d 695. In the case at bar, the commissioner found that travel on the highway was an important element of the plaintiff's employment. The critical question is whether the plaintiff's use of the highways on the night in question could be considered...